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Kamba v Nindiwi [2019] PGNC 471; N8361 (11 December 2019)

N8361

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 901 OF 2010

BETWEEN:
JOELLYN KAMBA
by her next friend WILLIAM KAMBA
Plaintiff

AND:
PAUL NINDIWI,
Provincial Works Manager,
Department of Works, Wewak
First Defendant

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Second Defendant

Waigani: Hartshorn J,
2018: 16^th May,
2019: 11^th December

TORTS – claims against state for injuries sustained by plaintiff when she fell from a bridge – Trial – notice under s5 of Claims Act – notice to sue state for damages is condition precedent to issuing proceedings against state – letter to state constituting notice under s5 given outside of statutory six months period – does not constitute proper notice under s 5 Claims Act – proceedings dismissed

DUTY OF CARE - plaintiff alleges that State owes a duty of care to maintain roads and bridges in the country - it has not been established that the State owed a duty of care to maintain the bridge and road where the accident is alleged to have occurred - first defendant as an officer or employee of the State did not owe on behalf of the State such a duty of care – plaintiff’s claim against the state for damages for the injuries sustained dismissed

Cases Cited:
Paul Tohian v. Tau Liu (1998) SC566
The State v. Brian Josiah (2005) SC792
CMSS (PNG) Ltd v. State (2014) N5717

Counsel:

B.C. William, for the Plaintiff
G. Akia and M. Pepi, for the Defendants

11^th December, 2019

1. HARTSHORN J: This is a decision on whether the State defendants are liable for injuries sustained by a 9 year old girl when she fell from a bridge.

Background

2. The plaintiff, the child, is suing the State defendants by her next friend, her father, for the personal injuries that she sustained as a consequence of falling through a hole in the Hawain River Bridge in Wewak, East Sepik Province on 26^th November 2008. The State defendants deny liability.

Whether s. 5 Claims By and Against the State Act has been complied with

3. The first consideration is whether s. 5 Claims By and Against the State Act (Claims Act) has been complied with. Notwithstanding that submissions were not made on this issue, it is pleaded in the defence of the defendants filed 9^th December 2011. Section 5(1) Claims Act provides that:

“No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section........,” (my underlining),

4. The requirement to comply with the Claims Act is a condition precedent that must be complied with before a proceeding is issued: Paul Tohian v. Tau Liu (1998) SC566.

5. As to no submissions being made on the issue, although pleaded by the State Defendants, I refer to the Supreme Court decision in The State v. Brian Josiah (2005) SC792. In that case the Supreme Court said the following concerning the non-pleading of a “limitation” defence:

“We therefore cannot accept Mr. Dataona’s submission’s that it is a statutory defence which should have been raised in the pleading. If a claim is not sustainable at law.......what difference would pleading of statute of frauds and limitations make? Can failure to plead cure a clear defect in law? Certainly not”

6. This decision is binding on this court. In this instance, there is a statutory provision which provides, in my view, that a claim in this proceeding shall not be enforceable because of non-compliance with s.5 Claims Act. To use the words in Brian Josiah (supra), can a failure to plead, in this instance a failure to make submissions, allow a statute to be disregarded? To my mind therefore, I am bound to consider that statutory provision on the authority of Brian Josiah (supra).

7. In this instance, a notice was purportedly given on behalf of the plaintiff pursuant to s. 5 Claims Act. This was by a letter dated 2^nd September 2009. The date of the letter is more than six months after 26^th November 2008, the date of the accident. Notwithstanding this, in a letter dated 29^th September 2009 in the second paragraph, the Solicitor General replied to the 2/9/09 letter as follows:

"After careful perusal of the letter, I am satisfied that your letter constitutes notice pursuant to the Claims By And Against the State Act."

8. Section 5 (2) Claims Act is:

“(2) A notice under this Section shall be given-

(a) within a period of six months after the occurrence out of which the claim arose; or

(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or

(c) within such further period as-

(i) the Principal Legal Adviser; or

(ii) the court before which the action is instituted,

on sufficient cause being shown, allows.”

9. As to the argument that the State is estopped by the content of the 29/9/09 letter from denying that the plaintiff has given the requisite notice under s. 5 Claims Act, it is clear that the 2/9/09 letter was not given within six months after the occurrence out of which the plaintiff's claim arose. In regard to the Solicitor General informing that the letter constitutes notice pursuant to the Claims Act, this is an instance of a purported exercise of a statutory power that the Solicitor General or the Principal Legal Adviser does not have. As I said in CMSS (PNG) Ltd v. State (2014) N5717 at [23] - [24]:

"23. In this regard I refer to the case of Paul Eddie v. Bill Kirokim (2012) N4932, in which the contention was made that the State had recognised a plaintiff's claim and therefore notice under s. 5 Claims Act was not necessary. At para 8, I stated that:

“8. The requirement to give a notice under s. 5 Claims Act is mandatory. No one on behalf of the State can waive these requirements directly or by implication. The Principle Legal Adviser is only able to allow a further time within which a notice shall be given, on sufficient cause being shown. In this regard, there is no evidence that the plaintiffs applied for an extension of time or that any further time has been allowed for them to file a s. 5 Claims Act notice.”

24. Similarly, it is for the court to decide whether the requirements of s. 5 Claims Act have been complied with and this includes whether a purported s. 5 notice is compliant and whether it has been given in time."

10. Consequently, as the 2/9/09 letter was not given within six months after the occurrence out of which the claim arose and there is no evidence of any further period being allowed pursuant to s. 5(2)(c) Claims Act within which notice could be given, s. 5 Claims Act has not been complied with and a condition precedent has not been complied with. This proceeding should be dismissed therefore.

11. Notwithstanding the dismissal of the proceeding as referred to above, I make a few comments concerning the plaintiff's claim.

12. The plaintiff pleads in essence that the State is vicariously liable for the actions or inactions of the first defendant, the Provincial Works Manager, Department of Works, Wewak. If the State was held vicariously liable this would be because the first defendant has committed an act or omission in the course of his employment. As an officer or employee of the State, the first defendant would only owe a duty of care on behalf of the State, which the State owes.

13. In this instance, the plaintiff submits that the State owes a duty of care to maintain roads and bridges in the country. It is submitted that this duty is derived from the Road Maintenance Act 1971. This Act provides for functions of the State pursuant to which the State shall, out of monies lawfully available for the purpose, maintain certain roads and for functions of the State pursuant to which the State may, out of monies lawfully available for the purpose, maintain certain roads.

14. The bridge and the road where the plaintiff's accident is alleged to have occurred are not pleaded as being in the category of roads that the State shall, as distinct from may, maintain. To my mind, it has not been established that the State owed a duty of care to maintain the bridge and road where the accident is alleged to have occurred. Consequently, the first defendant as an officer or employee of the State did not owe on behalf of the State such a duty of care. So even if the State was vicariously liable for the actions of the first defendant, it would not be for a breach of duty of care to the plaintiff as claimed as the first defendant did not owe such a duty on behalf of the State.

15. Given the above, it is not necessary to consider the other submissions of counsel.

Orders

16. It is ordered that:

a) This proceeding is dismissed;

2. The plaintiff shall pay the costs of the defendants' of and incidental to this proceeding;

c) Time is abridged.

__________________________________________________________________
M. S. Wagambie Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants